Apple Seeking Complete Ban on Samsung Galaxy Tablets and Phones in EU

[BaldiMac]

No need to reiterate anything. As for Apple's lawyers knowing where to draw the line i'd say: "call".

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To me, registrations like the one above is nothing but a weapon, one that the system never intended for them to have.

And that's the point that multiple posters have refuted over and over. Each individual design element does not have to be unique on its own. The claim is judged based on the entirety of the registered design elements. Pointing out any one element as generic or obvious is not at all productive.

 

[BaldiMac]

It more that you seem to really be defending Apple here.

So? Why is that relevant? Does that make me irrational?

I haven't been defending Apple so much as refuting one simple point over and over again. The idea that because some device somewhere contained some of the same design elements that Apple registered somehow negates Apples' claim. That's ridiculous. Apple's claim may very well fail, but it's not because some tablet in 2003 had rounded corners and a bezel.

I would agree Samsung design is iPad inspired but that is it. From there it they are different. I honestly call Apples case week because how many ways can you make a black slab.

That's a pretty weak reason. There have been dozens of tablets posted in this thread that do not infringe upon Apple's claims.

Apple is suing Motorola in another case for the XOOM but the XOOM fits with Motorola design standards and it is a black slab yet Apple is somehow thinking that is a rip off. I am surprised Apple has not sued ASUS for the transform yet.

I haven't read much about Apple's claim against Motorola, but I don't recall any trade dress complaints. Seems like it's mostly been a patent battle. Started by Motorola, of course.

 

[Oletros]

I haven't read much about Apple's claim against Motorola, but I don't recall any trade dress complaints. Seems like it's mostly been a patent battle. Started by Motorola, of course.

In Europe they have filled for the same community design as the Galaxy Tab

 

[HyperZboy]

Well, if these cherry picked images aren't being used, then that only means that Apple's using images of the Galaxy that look even less like an iPhone than the ones on the blogs, which means their case is even more baseless.

Did you ever think that it's probably not just these pics involved, but the software technology behind the devices that is also being challenged?

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Apple needs to slow down with the lawsuits. Especially considering that sanding has made so many of the vital internal parts for apple. Even trickles down to their MAC line. I bet if you open up your MB or MBP, you will see that your RAM is samsung, on the 3 different apple laptops I've had, all use samsung for the RAM.

If you hadn't noticed, Apple has quietly switch away from Samsung as its parts supplier in areas where there are other companies making similar parts. They just didn't make a public announcement about it.

 

[HyperZboy]

I remember Mr Jobs making following the following statement on stage when introducing iPhone/etc

"we patented the hell out of it"


Seems like the journalists (and general public) just take his word for it without any fact checking and somehow believe Apple is the most innovative company.

But there is another metric for measuring how innovative a company is and that's the # of patents a company receives from USPTO (as much as it's controversial).

Samsung was #2, after IBM, for past 10 years straight. Apple just broke into top 50 last year. Not top five, but top fifty.

I would say that metric is really not worth pointing to simply because Samsung makes parts for everything from computers, phones, TVs, Automobiles, etc. etc. etc. The list of categories they make parts for is endless.

Apple only makes Macs, iPhones, iPads, AppleTV & their accessories.

A better metric would be how many patents in a particular category.

 

[divinox]

So? Why is that relevant? Does that make me irrational?

I haven't been defending Apple so much as refuting one simple point over and over again. The idea that because some device somewhere contained some of the same design elements that Apple registered somehow negates Apples' claim. That's ridiculous. Apple's claim may very well fail, but it's not because some tablet in 2003 had rounded corners and a bezel.



That's a pretty weak reason. There have been dozens of tablets posted in this thread that do not infringe upon Apple's claims.



I haven't read much about Apple's claim against Motorola, but I don't recall any trade dress complaints. Seems like it's mostly been a patent battle. Started by Motorola, of course.

(i) pictures have first and foremost been posted to debunk the "pre-ipad"-myth. this has been stated several times by now, why do you keep misrepresenting its nature?

(ii) pictures help establish the level of originality in the ipad design. (i.e., it is not something that refutes apples claim, but rather shows what apples claim is actually about).

(iii) if you ask me, apples claim will lose because its not original enough when placed next to a 2003 tab and when taking overall technology fashion trends in to consideration. Further, edge-to-edge glass can be used to provide functionality that is hard to replicate through other means - this opens up for legitimate use of this technology (whatever design registrations there may be), which further reduce what apple can claim.

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And that's the point that multiple posters have refuted over and over. Each individual design element does not have to be unique on its own. The claim is judged based on the entirety of the registered design elements. Pointing out any one element as generic or obvious is not at all productive.

Dont make me repeat myself again:

Nor does it mean that its special. Like earlier stated we're dealing with a continuum here. As such, it is not sufficient to point at Apples inclusion of X into design set Y and say - behold, its unique! If so, the inclusion of Z into X+Y would also be unique. Rather, the inclusion of X into design set Y MAY create something unique. Similarly, the inclusion of Z into (the now unique) X+Y may create something unique.

Ergo: Just pointing to the mere fact that Apple did this and that does not mean that the result (i.e. the design) is unique.

 

[theluggage]

Duck Typing

If so, the inclusion of Z into X+Y would also be unique. Rather, the inclusion of X into design set Y MAY create something unique. Similarly, the inclusion of Z into (the now unique) X+Y may create something unique.

Try it this way:

1. Cartoon duck: no problem
   
2. White cartoon duck: no problem
   
3. Cartoon anteater in blue sailor suit: probably OK
   
4. White cartoon duck in blue sailor suit: you copied Donald, prepare to be sued
   
5. White cartoon duck in blue sailor suit wearing pirate eyepatch: you still copied Donald
   
6. White cartoon duck in blue sailor suit with dragon tattoo wearing pirate eyepatch with anteater sidekick and annoying catchphrase "quacktacular!": you still copied Donald

However, if you survive your lawsuit with Disney, the second person to produce a white cartoon duck in blue sailor suit with dragon tattoo wearing pirate eyepatch with anteater sidekick and annoying catchphrase "quacktacular!"... is all yours.

So far, all the "pre-iPad" examples people have posted have, to my eyes, been in the first three categories, even more so the pre-iPhone/iPod Touch (on which the iPad design was clearly based) examples.

 

[divinox]

Try it this way:

1. Cartoon duck: no problem
   
2. White cartoon duck: no problem
   
3. Cartoon anteater in blue sailor suit: probably OK
   
4. White cartoon duck in blue sailor suit: you copied Donald, prepare to be sued
   
5. White cartoon duck in blue sailor suit wearing pirate eyepatch: you still copied Donald
   
6. White cartoon duck in blue sailor suit with dragon tattoo wearing pirate eyepatch with anteater sidekick and annoying catchphrase "quacktacular!": you still copied Donald

However, if you survive your lawsuit with Disney, the second person to produce a white cartoon duck in blue sailor suit with dragon tattoo wearing pirate eyepatch with anteater sidekick and annoying catchphrase "quacktacular!"... is all yours.

So far, all the "pre-iPad" examples people have posted have, to my eyes, been in the first three categories, even more so the pre-iPhone/iPod Touch (on which the iPad design was clearly based) examples.

Care to explain how that is even remotely analogous? Second, I doubt anyone doubts that Apple has influenced the market (i.e. set, or established, a trend), thing is they are not the first to do so, and surely not the last.

p.s.

Arne Anka (Anka = Duck, Donald Duck = Kalle Anka). Very much alive and kicking, and has been since 1983 (more or less).

Addendum:

Ill add one of the most classic A.A. frames just for the sake of it:

"To think before one speaks is like wiping ones ass before taking a dump."

 

[AaronEdwards]

Arne Anka (Anka = Duck, Donald Duck = Kalle Anka). Very much alive and kicking, and has been since 1983 (more or less).

From Wikipedia:

In the beginning of the 1990s, The Walt Disney Company threatened to sue the author, Charlie Christensen, due to Arne Anka's similarity with Donald Duck. As a response, Charlie Christensen drew a comic strip about Arne faking his own death, so that he could have plastic surgery done to his beak in secrecy. Arne then returned with a new, pointed beak, and the pseudonym Alexander Barks was changed to Alexander X. After a while though, Arne went to a novelty store to buy a fake beak, which looked exactly like his old one. This new beak was drawn showing a small rubber band holding it in place until the threat of being sued was withdrawn. In the meanwhile, however, Disney's threat of a lawsuit, which received very extensive publicity in Sweden, had turned Arne Anka into a Swedish "independence hero" of kinds and increased his popularity manyfold.

 

[divinox]

From Wikipedia:

Threatened, yes. Did they succeed? Is Arne Anka alive and kicking, looking like he used to? Yes. Arne won, Disney lost. What is your point?

edit: for those of you who are interested,

http://www.adlibris.com/bookbrowser/default.aspx?culture=SV-SE&isbn=918600381X&shop=1

June edition (2011) of Arne Anka, use arrows to navigate.

 

[AaronEdwards]

Threatened, yes. Did they succeed? Is Arne Anka alive and kicking, looking like he used to? Yes. Arne won, Disney lost. What is your point?

I just find it a funny story, and considering that Disney has made billions from stories without copyright while being the driving force behind extended copyright longer and longer I find the fact that Arne Anka is still being drawn excellent.

(Now, from wikipedia bit it does seem that Disney never sued. So there really isn't a winner and loser here, unless there is anything showing that Disney was going to sue but found that they would have lost.)

 

[divinox]

I just find it a funny story, and considering that Disney has made billions from stories without copyright while being the driving force behind extended copyright longer and longer I find the fact that Arne Anka is still being drawn excellent.

(Now, from wikipedia bit it does seem that Disney never sued. So there really isn't a winner and loser here, unless there is anything showing that Disney was going to sue but found that they would have lost.)

Ah, ok - my bad. As for winning, well, he's still here* (if it was up to Disney im rather sure he wouldnt be). But you are correct in that the case was never settled in court.


* imagine a situation where a home-owner refuses to move, and is threatened by Big Corp. with legal action. If that house were left standing 20 years later, surrounded by massive complexes, would it be that wrong viewing them as winners? (obviously, it might suck to be surrounded by huge complex buildings, but thats besides the point).

 

[hans1972]

Threatened, yes. Did they succeed? Is Arne Anka alive and kicking, looking like he used to? Yes. Arne won, Disney lost. What is your point?

I am pretty sure if that Samsung only sold the Galaxy Tab in Sweden and only supported Swedish, Apple would not sue.

Had Arne Anka become a threah to Disney´s income all over Europe and the rest of the world I am pretty sure they would have sued.

 

[divinox]

I am pretty sure if that Samsung only sold the Galaxy Tab in Sweden and only supported Swedish, Apple would not sue.

Had Arne Anka become a threah to Disney´s income all over Europe and the rest of the world I am pretty sure they would have sued.

Doubt Arne Anka would threaten any of Disneys income regardless, they target "somewhat" different market segments. Cant blame you for not knowing that though.

Just thought it was funny that the analogy, crappy as it was, still failed in practice.

 

[KingCrimson]

$76 billion in the bank isn't enough. It has to be $200 billion.

 

[kdarling]

(iii) if you ask me, apples claim will lose because its not original enough when placed next to a 2003 tab and when taking overall technology fashion trends in to consideration.

One of the requirements for trade dress in the US is that the look has been exclusively in use for a while. Since the iPhone style was picked up right away around the world, that's almost impossible to claim. Which is why they then fall back on the Community Design registration instead.

Further, edge-to-edge glass can be used to provide functionality that is hard to replicate through other means - this opens up for legitimate use of this technology....

It's true that Android devices are likely to have used extra glass surface beyond the screen, as they often had capacitive "buttons" out there.

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I don't know about the EU, but in the US I think that Apple would have an extra tough time proving that their look had acquired the necessary secondary meaning to provide trade dress protection, and here's my reasoning:

Apple v Samsung is like the trade dress trial between the makers of Prestone antifreeze and a small town antifreeze, which used the same bright yellow color and type of container.

One main reason that Prestone lost the case, was because they didn't push the jug and color in their ads, only their name and product. In other words, the trade dress wasn't the primary advertising piece used to associate antifreeze with the Prestone name.

Likewise, Apple doesn't mention at all that the shape of the iPad or the style of its packaging are the things a customer should look for in a store when choosing a tablet. Far from it! Apple virtually never mentions the hardware or UI or box. Apple instead constantly advertises that it's the apps available for it that are important. The apps, not the flush glass or the trim around the edge.

(Think about their iPad ads, like the recent "We'll Always".)

 

[vrDrew]

One of the requirements for trade dress in the US is that the look has been exclusively in use for a while.

That is an oversimplification.

In the US, a propduct's Trade Dress is covered by the Lanham Act. After five years trade Dress becomes "incontestible" - ie. another company cannot challenge the right of (for example) Coca-Cola to the distinctive shaped bottle. But there is no reason that a company cannot assert Trade Dress rights and protections from day one. (And nowadays, most companies do just that.)

In general, its best to keep the following in mind when considering a company's rights to Trade Dress.

1) The Trade Dress characteristic cannot be functional. In other words, Apple cannot claim that simply having icons on a capacitive touchscreen is an element of Trade Dress, because the icons (and touchscreen) provide a function. (The capacitive touchscreen and method of interacting with it may be covered by patents, but that is another discussion.)

However, Apple certainly CAN claim that the overal appearance of the device - and specifically the shiny metallic bezel that surrounds the touchscreen, ARE elements of Trade Dress. Samsung certainly could have made a Galaxy Tab that functioned without the metallic bezel. They didn't - they chose to make a product that looked, to a very great degree, just like the iPad.

2) The second element of Trade Dress is that the elements one claims must be distinctive.

Thats where people posting pictures of Microsoft Tablets and the like are missing the point. Yes - these items may meet the definition of Tablets. But none of them have the specific design elements Apple is claiming as Trade Dress.

Just as plenty of people had sold beverages in glass bottles for (literally) hundreds of years before Coca-Cola came along with their product. Coca Cola never claimed to have invented the idea of serving drinks in bottles. What it claimed (and now incontestibly owns) is the right to sell them in distinctive hour-glass shaped bottles.

What Apple is doing, under their trade Dress registrations, is claiming the right to sell capacitive touch-screen computing tablets with metallic bezels (this is somewhat of an oversimplification.) But I think a fuller understanding of the law and how it is applied, both in Europe and here in the US, tends to support their argument.

 

[kdarling]

In general, its best to keep the following in mind when considering a company's rights to Trade Dress.

You only listed only two things. There are more. See this previous post and others in this thread.

Thats where people posting pictures of Microsoft Tablets and the like are missing the point. Yes - these items may meet the definition of Tablets. But none of them have the specific design elements Apple is claiming as Trade Dress.

Since we're talking about the US now, the US iPad design patent wasn't filed until Jan 6, 2010... long after Samsung had sold that digital picture frame in 2006 and Electrovaya their SC4000 tablet in 2008.

(Note that the iPad design patent only claims "The ornamental design for a portable display device", not a tablet.)

This is why Apple is trying so hard to include the iPhone design in the case. They want/need to establish a design far earlier than Jan 2010.

The iPad design patent also includes a Home button, which the competing devices are lacking.

What Apple is doing, under their trade Dress registrations, is claiming the right to sell capacitive touch-screen computing tablets with metallic bezels (this is somewhat of an oversimplification.)

Under trade dress, Apple isn't claiming anything about touch screens. They are currently claiming a rounded rectangle with flat screen evenly surrounded by borders and a metal bezel.

(The design patent did not specify metal, btw. Even so, some wags suggest that Samsung should simply replace the metal bezel with a rubber one and call it a day.)

But I think a fuller understanding of the law and how it is applied, both in Europe and here in the US, tends to support their argument.

As I've been pointing out in examples of other trade dress cases, it's not a clear case at all. Especially considering it's going to be hard to pass the important test of the likelihood of confusion at the moment of purchase.

 

[vmistery]

I personally am not confused when buying a device which seems to be one thrust of this case. I bought a Galaxy S2 on its merits to replace my 3GS. It had an 8mp camera, was dual core, was Android (which I have never played with) and was cheaper than an I[hone 4. IF the iphone 5 had been come out in July I would probably had got that as it would have been similar! Perhaps Apple is going to be the copy cat.
On the tablet side I bought an iPad because it was 3g and I could keep all my iTunes stuff on a portable device. Having used the Galaxy S2 for 2 months or so now I can safely say its nothing like using an iPhone and there is a great deal more 'stuff' both to the plus and the negative.

Do I agree with the case? Well if it makes Apple practically the only touchscreen smartphone manufacturer then no as that has got to be bad for innovation / future improvements / choice.

 

[ComputersaysNo]

I just heard an interview with webwereld.nl on the radio:

Samsung logistics is registered in the Netherlands, therefore Dutch law is applied. Samsung Logistics is responsible for the distribution of the rest of the EU.

If Apple wins the case against Samsung Logistics, the whole supplyline for the EU is being cut-off.

 

[Oletros]

I just heard an interview with webwereld.nl on the radio:

Samsung logistics is registered in the Netherlands, therefore Dutch law is applied. Samsung Logistics is responsible for the distribution of the rest of the EU.

If Apple wins the case against Samsung Logistics, the whole supplyline for the EU is being cut-off.

But viewing the result of the preliminary injunction and the comments of the court, is not easy for Apple to win the case.